President Trump has made it a goal to end birthright citizenship, a fight that is putting the Constitution to the test. Hiroshi Motomura is the Susan Westerberg Prager Distinguished Professor of Law and faculty co-director of the Center for Immigration Law and Policy at UCLA. He joins host Krys Boyd to discuss how birthright citizenship came to be, what the Trump administration’s challenge looks like, and what it means for immigrants and their families living in the U.S. today.
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Transcript
Krys Boyd [00:00:00] When babies are born in this country, there are no special applications for citizenship, no tests to pass. Since the ratification of the 14th Amendment back in 1868, if you come into the world on U.S. soil, you are officially and permanently an American. But President Trump thinks that’s a bad deal for the country, at least when it comes to babies whose parents don’t have official permission to live here. From K-E-R-A in Dallas, this is Think. I’m Krys Boyd. The president signed an executive order on the day of his inauguration declaring an end to birthright citizenship for babies born in this country without at least one parent with U.S. citizenship or legal residency rights. Nearly two dozen states immediately filed lawsuits challenging that. And on Wednesday, a federal judge in Maryland issued a preliminary nationwide injunction blocking the executive order. That injunction will most likely stay in place until a higher court takes up the issue. So setting aside the executive order for a moment, what are the chances the president’s allies in Congress could mount an effort to change the Constitution? And if this were to happen, would the end of birthright citizenship change what it means to be an American? Hiroshi Motomura is here to talk about this. He is Susan Westerberg Prager, distinguished professor of law and faculty, co-director of the Center for Immigration Law and Policy at UCLA. His book is called “Borders and Belonging: Toward a Fair Immigration Policy.” Hiroshi, welcome to Think.
Hiroshi Motomura [00:01:26] Thank you for having me.
Krys Boyd [00:01:27] Will you start by defining the term birthright citizenship for us? What does it mean that we currently automatically extend this to virtually every baby born in the U.S.?
Hiroshi Motomura [00:01:37] Well, birthright citizenship actually consists of two parts, and we’re focusing on one of them. The two parts. One is that you can it simply means born a citizen, so you can be born a citizen because you have 1 or 2 U.S. citizen parents. But that’s not what we’re taught. And we’re regardless of where you’re born and that’s not what we’re talking about today. We’re talking about the part of birthright citizenship that arise from birth on U.S. soil with a few very narrow exceptions. And that’s the received well understood, well established meaning of the 14th Amendment. Anyone, anyone was born on U.S. soil is a U.S. citizen from birth, and that is birthright citizenship. That is the focus of the current political controversy.
Krys Boyd [00:02:19] Just so we make sure that we cover these, what are the exceptions as spelled out in the law?
Hiroshi Motomura [00:02:25] Yeah, Well, they, I think, are have been made quite clear in Supreme Court cases. And I can get more into some of the details on this. But to answer your question, the Supreme Court has recognized two exceptions to the general rule that birth on U.S. territory confers U.S. citizenship at birth, and one of them is children of foreign diplomats. And this is not just any foreign diplomat in the sense of it’s not, you know, anyone who just is born or and with parents who are working in an embassy, it has to be foreign diplomats of a certain rank. And the other exception that matters, at least in theory, although it hasn’t happened, is I’ll quote from the Supreme Court decision. It says that one exception is for children born of alien enemies and hostile occupation and court. Those are two exceptions. There’s actually a third exception that has a historical significance. But I mentioned that to be complete. And there was a time in the 19th century when American Indian tribes, native nations, were regarded as independent enough as nations to be outside this rule of birthright citizenship. And so that changes over time. The changes over time in American Indians, people born to American Indian tribes came to be recognized as also governed by the same birthright citizenship rule. So children born to Native American tribes are U.S. citizens now. But at the time, the Supreme Court mentioned two exceptions that that I think are valid as at least as a matter of theory. One of them is the children for diplomats is the one that matters now. And American Indians, that’s gone by the wayside in historical terms. And that’s what the Supreme Court said. I should add that the reason these three exceptions were thought to exist and two of them continue to exist is the 14th Amendment says they’re born on U.S. soil. That’s the first requirement. But they also have to be subject to the jurisdiction of the United States. And so the question is, who’s subject to the jurisdiction? Who is not? And so the people in these exceptions, the reason that they’re they are exceptions is that these are people who are thought not to be subject to the jurisdiction of the United States. And. One of them is the diplomatic exception. And that’s because people of a certain rank who work in embassies and consulates of foreign countries who are in the United States, they’re not subject to the jurisdiction that states in the same sort of way. And anyone who’s, you know, who’s had a automobile accident, for example, with a high level diplomat knows that you can’t just sue them in the normal way. And alien enemies in hostile occupation, they are seen as combatants and they’re subject to the rules of the law of war. And so that’s an entirely different sort of thing. So those were the those are those are the exceptions. And I think it is. I’m glad you asked about that because that’s really what the controversy is here.
Krys Boyd [00:05:44] Okay. And, for example, hostile occupation. That means if the U.S. were to occupy some foreign country on a but assuming a temporary basis, the people in that country would not immediately become birthright citizens as they were born in that place.
Hiroshi Motomura [00:05:58] I think the way that the way the Supreme Court was looking at this is, let’s say the United States itself is and is is occupied by a foreign power. In other words, this is a situation where I’m sure they’re there. This reminds me of the the man in the High Castle novel. It’s really if there’s a sort of a counter history where some foreign army occupies part of a United States territory and they bring their families and have children, that’s the situation. And that’s why I say it’s a it’s quite an exceptional situation, not only to have a hostile occupying army of the foreign government, but also for children to be born to those forces in some sort of a base that would be established or something. This is all what the Supreme Court had in mind as far as we can tell in 1898 when they when they used those words.
Krys Boyd [00:06:54] Okay. Some observers have said that if the president’s desired changes to birthright citizenship somehow come to fruition, this would be of greater consequence for this country than the reversal of Roe v. Wade. Do you agree?
Hiroshi Motomura [00:07:09] Yeah, I think that’s absolutely right. I cannot think of anything that’s more fundamental to American democracy and the way that this nation was formed, nothing more fundamental than the birthright citizenship rule that we now have. And it’s been understood and accepted as having been the case, at least as far back as 1898, when the Supreme Court decided a case called Wong Kim Ark. But I would say from the drafting of the 14th Amendment itself, and I can get more into that. But the basic idea is that this has been as bedrock principle in a rule for how the country understands itself, but also how it sees its future. I think this is something that the supreme, not just the Supreme Court, but the the drafters of the amendments that were adopted after the American Civil War, how they saw the future of the country. And I think that if their argument is that this is not the way this country should be run or how the country should see itself. Well, those are arguments you can make in a constitutional convention to revise the wording, the Constitution. But I but what we’re talking about now is what the Constitution as written means and not to criticize it, but that doesn’t change what it means.
Krys Boyd [00:08:29] Remind us, Hiroshi, of the reasons the Constitution was amended to grant automatic birthright citizenship.
Hiroshi Motomura [00:08:38] Yeah, well, the couple of things that are worth noting here. One is that the approach that prevailed in the very first decades of the American nation was an approach that was carried over from England. And it was this rule of being born in the territory would confer citizenship. So that was the rule that prevailed in the first part of the 1800s. And it was really it was embraced in the new United States of America and then made sense for reasons that are worth mentioning, because the carryover really throughout American history, and that is that this is a country that has much of its population drawn from from different groups of immigrants. There’s a couple of major exceptions that are very important, of course. One is Native Americans and the other is enslaved people who were forcibly brought to this new continent or what people thought was a new continent. Of course, it wasn’t all that new. But anyway, so that was embraced in the United States of America. And it made sense for what became a settler nation in terms of that much of its population. Now, what happened was with the big controversy, one of the major national controversies that arose in the first half of the 1800s was was slavery. And, of course, this is one of the major causes of the American Civil War. And there’s the question became, what would be the what would be the slave or free state status and free territory status of of of states or first territories and then states as the United States expanded westward. And part of that controversy, what’s the status of African-Americans and the United States Supreme Court decided in the 1850s in a very infamous decision called involving a man in Dred Scott that African Americans could not be citizens, were not citizens, and could not be citizens of the United States. So this this it compresses volumes of history and maybe even hundreds or thousands of careers To say that’s what led to the civil war is certainly a part of the run up to the civil war. And the civil war established a lot of different things. It asserted the primacy of national citizenship over state citizenship. You have the Emancipation Proclamation freeing the slaves, and you have several amendments to the US Constitution that say we’re going to continue the practice of recognizing birth on U.S. soil as the basis for U.S. citizenship. But we’re not going to use it in a racially discriminatory way. Now, I don’t mean to suggest that the Civil War Amendment ended discrimination far from it. But what I am saying is that the aftermath of civil war at the drafters of these constitutional amendments fully recognized that citizenship was a and was necessary even if it was the fruit necessary for equality, even though it wouldn’t be necessarily sufficient. Necessary, but not sufficient. And so this meant that everyone born on U.S. soil, with these narrow exceptions that I mentioned earlier, everyone born on U.S. soil be regarded as a U.S. citizen. So this represented a few things that I think are really important to the question of how fundamental birthright citizenship is to this country. One is that this would be an inclusive sense of citizenship that would not be racially discriminatory. This, by the way, is at a time when acquisition of citizenship through naturalization, through becoming citizenship, you know, after birth, when naturalization was quite racially restricted, the first white the three white persons were the only persons who could naturalized from 1790 until 1870. And racial restrictions on naturalization were part of U.S. law until 1952. So but that was naturalization, which was, of course, the citizenship. But it’s it’s the other way you become a citizen. But with regard to birthright citizenship. The 14th Amendment represented a commitment to ending racial discrimination and making sure that everyone in the United States born in the United States would be a citizen. But here’s here’s a more fundamental thing I think it’s really worth noting. The 14th Amendment represented a way of thinking about what citizenship is. And citizenship is a official recognition of membership. But it recognized citizenship as a vehicle for building a stronger country. In other words, the idea is if if we grant citizenship, then that means that they belong in the sense that we expect them to contribute to this country. Their children will feel like they belong. They will contribute to this country. And so citizenship isn’t just some recognition of past accomplishments, but it’s really a vehicle for making people feel part of the national future.
Krys Boyd [00:14:04] Hiroshi, you mentioned this 1898 court case. U.S. born son of Chinese immigrants, Wong Kim Ark. This really tested how the Supreme Court would interpret the 14th Amendment’s birthright citizenship, didn’t it?
Hiroshi Motomura [00:14:21] Yes, And it provided that birth on U.S. soil would confer U.S. citizenship at birth and provided some exceptions that are really very narrow. And one bit of context here is that the Supreme Court decided in 1884. So it’s it’s 14 years before Wong Kim Ark, the cited a case called Elk versus Wilkins, which held that children born in American Indian tribes would not be regarded as citizens. And this was an example of what it means to be not subject to the jurisdiction United States. At the at the time, the view prevailed enough that American Indian tribes, Native American tribes, were viewed as not fully subject to the jurisdiction United States, because they were, in some sense independent enough or separate enough from the United States that they would not be subject to jurisdiction. And so that that view of Native American tribes changes over time. And so that any exception to for American Indians that no longer exists, but it created some opening for contesting well, who is subject to the jurisdiction that states anyway? And at that time, at that time, federal law prohibited the acquisition of citizenship. By naturalization, by becoming applying for citizenship if anyone was a Chinese immigrant. And so that opened up the possibility that people argue, well, how, how how could it be that someone cannot be a naturalized citizen under federal law? But but their children, if born in the United States, are citizens, how could that be? And there was some at least a momentary skepticism there that that could be the way things are. And and the Supreme Court comes in in 1890 and says, well, that’s a separate question and it’s of naturalization. We think that the 14th Amendment established a rule. Our job is to interpret what it means. And it’s and the Supreme Court said that it’s it’s clear that it was meant to put into the Constitution the the practice the prior practice handed down from England that birth on U.S. soil confers citizenship with narrow exceptions. And and the children of Chinese immigrant parents, even though they couldn’t naturalize, they were clearly subject to the jurisdiction of the United States. And. And that’s that’s what happens. And this has been the received and accepted understanding of birthright citizenship, at least since 1898. And if you look at the congressional debates involving the drafting of the 14th Amendment, I think it’s very clear from the 1860s.
Krys Boyd [00:17:25] The president has stated that the United States is the only country in the world that offers birthright citizenship. I want to note here, this is not something that we can debate. This is just simply not true. Is that correct?
Hiroshi Motomura [00:17:36] That’s right. It’s not true. It’s not true. There are other countries that that have birthright citizenship in this type in different forms. But I want to go back to a point about the difference between not liking the law and not liking what’s said in the Constitution. And then difference between that and what the Constitution actually says. Right. So if you if you believe that that that rule in the 14th Amendment, conferring birthright citizenship has some some disadvantages in some way and maybe is even misguided in some way, you might that’s an argument that probably ought to be made in a constitutional convention, but it’s not an argument that goes to what the what the 14th Amendment actually said and how it arose and how it represents a vision of the country. One could debate what the vision of the country is. But but the 14th Amendment says Says what? It’s what it says. Now, you asked about, you know, other countries. I think you see variation. But one pattern that you’ve tended to see and I’m not an expert on, on the law of other countries, so I’m talking in very broad strokes. But countries that have a history or at least a self-perception of having significant immigrant populations are the countries that have the broadest rules of birthright citizenship. And this is partly because of the need to embrace immigrants, to attract immigrants, to tell them that they can be part of the country going forward. And so so those are the countries, for example, in the Western Hemisphere that that that have tended to have these birthright citizenship rules. Countries that have the historical self-perception of not being countries of immigration, not being nations of immigrants, they’ve tended to pass down citizenship through bloodlines. And and there’s been some flow. There’s been some movement in some of those countries toward recognizing birthright citizenship more generously than historically been true. Because I think that some countries have recognized that it’s a real it’s a real problem if you have second, third, fourth generation foreigners living in a country who know no other place and who feel marginalized and feel that they don’t fully belong. And so some countries that have had have opened up birthright citizenship and before. But again, this is this is a point at which different countries have debated. But I don’t think those debates really go to what the 14th Amendment historically means and or I should say means in light of its history of its drafting.
Krys Boyd [00:20:50] What happens now if parents with U.S. citizen children are targeted for deportation?
Hiroshi Motomura [00:20:58] Well, this gets to some something. I think it’s very much we’re talking about it, which is what exactly the executive order says and really how that’s going to be operationalized. So. So maybe it would help to for me to explain that the executive order has a different sections. And the one section, section number one is called the Declaration of the Meaning of the 14th Amendment. That’s what I would call it that. Anyway, it’s a declaration about the meaning of the 14th Amendment. And it says that that the United States is shipped does not automatically extend to a person born in United States when that mother person’s mother was unlawfully present and the father was not a citizen or lawful permanent resident. Right. So if you have this is something you said in the introduction about there’s this would be. An undocumented or unauthorized mother. The other thing it says is that you are not a U.S. citizen. If the person’s mother at the time of the child’s birth was lawful but temporary. So we’re not just talking about the children of of parents who are in the country with that lawful status. We’re also talking about children born to parents who may be in the United States on a student visa. It could be children born to graduate students. Children born to parents who are often in temporary work situations, many of which can last for a number of years, whether it’s whether it’s studies or on some work visas, it could be even longer if someone is here on a non investor visa, which which could be extended indefinitely. So that’s what it says. The other thing it says, though, in Section two is how puts the interpretation of the. Section one into practice, and it says that no department or agency, United States government shall issue documents recognizing United States citizenship. And in that instruction to agencies and departments of the United States government. That only applies from 30 days after the date of this order, so it only applies to late February 2025. But but here’s how it relates to the question you ask about people subject to deportation. Section two of the executive order says we’re only going to stop issuing documents like a passport starting in late February of 2025. But Section one, actually. Declares the meaning of the 14th Amendment, and it means that it’s only 30 days from now we’re going to stop issuing a passport. But actually. You’re not a citizen. And it’s by the grace of the executive branch. That we’re recognizing as a citizen and we’ll give you a passport. Okay. Now, the reason this matters is it relates to the situation you described regarding deportation. If if if the meaning of the 14th Amendment were to be changed in this very drastic way, it would mean that it would. It would mean that the 14th Amendment as reinterpreted, would authorize the deportation of people who thought they were United States citizens. That could be children subject to deportation. It could also mean that they would not enjoy many other privileges and benefits of and rights of citizenship. We don’t know what. The consequences would really be beyond the notion that the government will issue you a passport starting in 30 days. We don’t know what it means. So I think the short answer is the very long answer. But the short answer your question is that under the interpretation of the 14th Amendment, a lot of people would not be citizens who now think they are citizens and all kinds of consequences ranging from you can’t vote to you can’t be deported, would follow.
Krys Boyd [00:25:24] So I want to make sure I’m understanding you, Hiroshi. Are you saying this would mean birthright citizenship was revoked from people born in the U.S. to parents without the proper legal permission.
Hiroshi Motomura [00:25:36] It would be revoked in theory. In other words, it says in the first section of the executive order. The categories of persons. Does not at a manically extend to people under certain circumstances. One is the undocumented mother whose father was not a citizen or permanent resident. The other is a mother who was on a temporary visa type status and whose father was not a citizen or lawful permanent resident. There’s nothing in here that limits if if that were to be the new interpretation of 14th Amendment, there’s nothing that says it only applies into the future. And so this is this is this is a potentially very far reaching change. How far it actually reaches, if it were approved by the US Supreme Court or how far it actually reaches, is going to depend on what the executive branch decides to do with interpretation. Section two says the executive branch will only put this on, in fact, starting in 30 days and into the future, prospectively, in other words. But there’s nothing about the principle that says anything about who, about the time of application. And this is why it’s a it’s a it’s a mistake to think that this is only from 30 days into the future. I think it it has by establishing a principle. It’s a principle that is not bound by bound by time.
Krys Boyd [00:27:12] Let’s say the president persists with his desire to amend the terms of birthright citizenship that have existed for a century. Could this be done with his executive order alone, or is the only possible path ultimately to amend the Constitution?
Hiroshi Motomura [00:27:27] I think the only possible path is to amend the Constitution. But but let’s think about how this is going to play out. We have this executive order and we already have multiple lawsuits attacking the executive order on the ground that it is inconsistent with the United States Constitution. In other words, it violates the Constitution and specifically the 14th Amendment. This is there’s been a court order already blocking the implementation of the of the executive order, and it’s going to essentially go through the courts. So it’s not something that the president can do by executive order. It’s going to require the executive order is going to be tested in the courts, essentially. And and that’s that’s stage one. And stage one is executive order. Stage two is how it goes through the courts. And if, as I believe is the right answer, but for the courts, including the U.S. Supreme Court, ultimately decide that the executive order is unconstitutional, then in theory, there is the option of amending the Constitution that states.
Krys Boyd [00:28:49] You say the only possible outcome for the high court is to declare the president’s order unconstitutional. We have seen this particular current Supreme Court generally receptive to the desires of this president in ways that have cleared space for him to act as he sees fit without fear of criminal prosecution. Is there any way in which is there language by which the high court could interpret the 14th Amendment to somehow never have truly guaranteed birthright citizenship as it has been understood for over a century?
Hiroshi Motomura [00:29:21] Well, I think that we’re at a time in U.S. history where the Supreme Court certainly has shown itself willing to overturn longstanding precedent. And most prominently, I suppose we’re talking about Roe versus Wade in there. There are also other decisions that have been around a long time. The Supreme Court has has overruled. But a couple of points to make here. One of them is that birthright citizenship, as I mentioned earlier, is so deeply embedded in the in American history and the American concept of the nation that it was drafted respecting some principles and having those principles put into law and not just put into law to protect the Constitution, that it be far more fundamental to reinterpret the 14th Amendment, I think really to rewrite it than than it was to overturn Roe versus Wade. And that’s that’s probably the key thing to remember, is that this is this is so basic that it would fall outside what the Supreme Court has done so far, even even in a court that that seems willing to do that.
Krys Boyd [00:30:49] Hiroshi, I’m curious about the citizenship status of babies born in this country to non-citizens without legal permission to reside here permanently. Would those babies be automatic citizens of the countries their parents came from with those? Could it be possible for a baby to be born effectively stateless?
Hiroshi Motomura [00:31:09] It depends on. The law of citizenship governing citizenship in the country of the parents, the country of the parents, citizenship. In other words, let’s say you have somebody coming to this country. They’re graduate students. They have a child. Under current. Well, under the 14th Amendment. Under the Constitution, the child will be born as as a U.S. citizen by. By the 14th Amendment. But the law of the home country of those graduate students would govern whether the child is a citizen of that other country. Now, generally speaking, countries around the world allow citizenship to be passed on through bloodlines as well. So it’s quite possible that the child would be a dual citizen, a citizen of both countries. It’s possible that now I’m getting into some territory that I hesitate to really speak to in detail because I don’t know the citizenship law of other countries in a way that would allow me to answer the question. But basically, in any case, you’re going to have you’re going to have the child having that other country citizenship. It’s also possible that this I just think through the scenarios here, it’s possible the child would end up without the citizenship of that country depending on circumstances and the child would be stateless. I can’t really speak to the numbers here in the percentages, but but there are scenarios that would possibly, possibly result in statelessness. You know, but but the real point is related to U.S. citizenship as a way to tie the to tie citizenship to building the country. And in that sense, I mean, this is a this is a sort of a. View of the 14th Amendment that really tries to reinforce the importance of citizenship and the importance of citizenship citizenship in building a cohesive society.
Krys Boyd [00:33:22] So to your point earlier, I suppose there are a couple of ways of looking at citizenship, right? There’s there’s the way that you’ve described that citizenship is in addition to a set of rights. It’s a set of responsibilities. Other people may choose to look at citizenship as like a special privilege that should be reserved for certain people because it might come with some benefits.
Hiroshi Motomura [00:33:44] Yeah. I mean, I think that the 14th Amendment, its history and the way it’s been received and the way we think about the way we think about citizenship now, I can see the point that it’s a it should be reserved in a special way. And it’s really a kind of a diploma, something that you really have to to to. To prove that. I suppose the logical extension of that argument is to say that we shouldn’t have any birthright citizenship, we should just make everyone naturalized and, you know, pass it, pass a test and things of that nature. I think the 14th Amendment represents a very different view of citizenship, which is that it’s a way it’s a, I guess, the term vehicle. It’s a way to bind a nation together. And if that’s the case, then the worst thing you can do is to have such a narrow definition of citizenship or their narrow rules conferring citizenship that are going to say, well, some people belong here and some people don’t. But the people who don’t live in this country, they become part of society. They’re in our communities. They work and they pay taxes. And to have a rule that makes citizenship so hard to get that it’s a club within the club of the nation as a whole is precisely the kind of thing that the 14th Amendment prevents and or is meant to be a bulwark against. You know, it’s actually worth thinking about the term nation of immigrants, because I think your question implies what does that actually mean? Someone said to me the other day, and I think it was a very fair, fair point. She said. You know, you use the term nation of immigrants. A lot of people use the term nation of immigrants in the context of the 14th Amendment. Amino. In other words, the 14th Amendment is appropriate for a nation of immigrants. And what she said to me is But some people don’t buy the notion of nation of immigrants. They don’t accept that as a goal in this country. And that may be true that people hold that view. Maybe it’s no accident that the first Trump administration took the words nation of immigrants out of the mission statement of the United States Citizenship and Immigration Services, which is the agency that decides visa petitions and naturalization applications and things like that. But I think the nation of immigrants is not just not a goal per se. It’s not just as a moral aspiration. It’s not a goal. It’s also a fact. It’s a demographic fact. And the reason this this relates to the meaning of citizenship is that if you have a nation of immigrants, the way forward to build that nation is to include people. And and so that’s including people is totally consistent with thinking of citizenship as a club that’s reserved for relatively few. There’s a couple other things that I think are worth bringing up here besides the fact that nation of Immigrants is it’s not just a goal, but it’s also really a demographic fact. There are other countries I’m speaking from, from actually living in Germany. I’ve lived in Germany for very or spent a fair amount of time in Germany over over a number of years. And when I first was an exchange student in Germany, there was a I often heard, you know, we’re not a country of immigrants. We’re not a country of immigrants. And and over time, that changed. And around the year 2000, there was a government commission, and the government commission said an important part of it. We need to accept the fact that we become a nation of immigrants. And that was really a reflection of how the country changed about who was actually living there. So it was it was really a question about what the country is and how we make the most of our national future. And and I think that that’s really what the the 14th Amendment stands for. And this is why it’s so. But I should also explain, this is not just a policy notion that it’s not just the notion that that this is the way citizenship, you know, ought to be in the future. I don’t think it’s I don’t think that’s the level in which I’m saying this. I’m saying this was written into the Constitution in the in the form of the 14th Amendment. There’s another piece of this I think it’s important to mention, which goes back to a question you raised earlier, to which I gave an incomplete answer. We were talking about the what the Supreme Court United States might do. And I think I’m saying that reinterpreting the 14th Amendment would be about its fundamental as anything could be. And you asked about something I didn’t fully answer or get back to, which is one of the arguments that that the 14th Amendment subject to the jurisdiction. Well, actually excludes that the children of people who don’t have legal status or who have legal status are separate. I think that some of the what I’ve heard or maybe read in the blogosphere is that, well, aren’t people who are without lawful status. Aren’t they invaders in some sense? And doesn’t that mean that they’re not subject to the jurisdiction of those states? The two points, I think are worth making here. One is that the word invader, I think, is is you know, it’s a it’s a it it’s a way of of characterizing people and marginalizing them that I think is entirely inconsistent with what I think of as an invader, as an agent of a foreign army and that sort of thing. I mean, it’s like calling, you know, people invaders or or cutting using words that really not only in some cases they dehumanize them, but in many cases it’s saying, well, this is the state of emergency. This is national security problem. So I think that the word is overused. But here’s the thing. I want to the point I’m really making here. The long term work decision that establish exceptions to to birthright citizenship. It didn’t talk about it did not talk about invaders. It never used the word invader in the decision. It said children born of alien enemies in hostile occupation. And that’s definitely what we don’t have here. And so that’s that’s. So we might see this argument that that and we have heard the argument that people with outside us are invaders. But but that’s really not what the standard is. And I think the word invader is inappropriate for other contexts in which it’s used. But I think in this particular context, it doesn’t match up with what the Supreme Court said.
Krys Boyd [00:40:58] If somehow the president were to get the changes that he wants, this policy passed as a constitutional amendment or approved somehow by the perhaps less likely Supreme Court interpretation, by what mechanisms could this actually be enforced in this country?
Hiroshi Motomura [00:41:15] Under the Section one of this executive order. Everyone who was born in the country has to prove something about their parents in order to confirm or verify that their individual is a U.S. citizen. Let’s say that I or anyone is not in the United States, and I have to reach back and verify something about the status of my parents at the moment that I was born. And it could be, of course, number of years ago. The person’s parents may no longer be alive and it could be exceedingly hard to prove. It would certainly be. Bureaucratically an incredibly difficult thing to do. If you think about everyone who applies for a passport, just to take that one example, I mean let alone other things like voting in many other aspects of citizenship, you would have to go back and show about what your parents immigration status was or citizenship status was at the back when you were born. And for some people, it might be relatively easy. For other people will be very difficult, and for some people might be impossible, even though their parents actually were in the qualifying categories. Now, I’m sure that the response that to this and it’s a logical response is that no Section two of the executive order says we’re only going to apply this in the future starting in late February of 2025. But that’s the operationalization of this of this new rule. If the new rule is is ever validated as a reinterpretation of the 14th Amendment, there’s nothing that’s going to keep future this administration or future administration from saying, you know what? We’re going to actually apply the real the principle of the 14th Amendment as reinterpreted. And so they could apply it. And it may be that the bureaucratic nightmare that would result will keep them from applying it, but that’s what decisions that an executive branch would have the power to make. I want to add here that there’s something about this executive order that is worth noting because it reflects an approach, an executive order that I think applies to a lot of executive orders we’ve seen. Section two, which says it only applies 30, 30 days from now. That’s the specific way it’s going to be implemented. But there’s another layer to this executive order, which is even though it’s implemented in a certain way. What’s the principle that it’s that’s being advanced in this executive order? So it’s the first. The first one is how they operationalize. But the second one, which is a slightly it’s a much broader one, actually, is what’s the principle? And then beyond the operationalization and the principle, you have an even broader meaning of executive order. It’s not really written in executive order like the operationalization and the principle, but it may be most of it, but it is more fundamental. And that is what the executive order is part of in terms of articulating a vision for the United States. So at the level of the vision, the vision is that many people who thought that they belong to this country really don’t and that the nation of immigrants is a much narrower or narrower club than than than a lot of people thought. In fact, the whole country thought for a long time. And I think that this has a lot of calling back to the history of this of the 14th Amendment, which was an effort to erase one of the most prominent stains of racial discrimination in American history, which was the Dred Scott decision denying citizenship to African-Americans. And so there are implications for reimagining what the American nation is and who belongs that have strong overtones affecting recent immigrants, many of whom are immigrants who are not of European origin. And I think that there is a racial element there that is part of what’s at play, not in the operationalization of this and Section two, not in the principle in section one of the executive order, but in the view of this country that the executive order reflects.
Krys Boyd [00:45:26] Hiroshi Motomura is Susan Westerberg Prager, distinguished Professor of Law and faculty, co-director of the Center for Immigration Law and Policy at UCLA. His book is titled “Borders and Belonging: Toward a Fair Immigration Policy.” Hiroshi, thanks very much for making time for the conversation.
Hiroshi Motomura [00:45:42] Thank you for having me. Really appreciate the opportunity.
Krys Boyd [00:45:45] Think is distributed by PRX, the Public Radio Exchange. Once again, I’m Krys Boyd. Thanks for listening. Have a great day.
